Internet and Email Evidence 2008
The explosive growth of the Internet and burgeoning use of electronic mail are raising a series of novel evidentiary issues. The applicable legal principles are familiar — this evidence must be authenticated and, to the extent offered for its truth, it must satisfy hearsay concerns. The novelty of the evidentiary issues arises out of the novelty of the media — thus, it is essentially factual. These issues can be resolved by relatively straightforward application of existing principles in a fashion very similar to the way they are applied to other computer-generated evidence and to more traditional exhibits.
There are primarily three forms of Internet data that are offered into evidence — (1) data posted on the website by the owner of the site (“website data”); (2) data posted by others with the owner’s consent (a chat room is a convenient example); and (3) data posted by others without the owner’s consent (“hacker” material). The wrinkle for authenticity purposes is that, because Internet data is electronic, it can be manipulated and offered into evidence in a distorted form. Additionally, various hearsay concerns are implicated, depending on the purpose for which the proffer is made.
Website Data. Corporations, government offices, individuals, educational institutions and innumerable other entities post information on their websites that may be relevant to matters in litigation. Alternatively, the fact that the information appears on the website may be the relevant point. Accordingly, courts routinely face proffers of data (text or images) allegedly drawn from websites. The proffered evidence must be authenticated in all cases, and, depending on the use for which the offer is made, hearsay concerns may be implicated.
The authentication standard is no different for website data or chat room evidence than for any other. Under Rule 901(a), "The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998); Johnson-Wooldridge v. Wooldridge, 2001 Ohio App. LEXIS 3319 at *11 (Ohio App. July 26, 2001).
In applying this rule to website evidence, there are three questions that must be answered, explicitly or implicitly:
1. What was actually on the website?
2. Does the exhibit or testimony accurately reflect it?
3. If so, is it attributable to the owner of the site?
In the first instance, authenticity can be established by the testimony of any witness that the witness typed in the URL associated with the website (usually prefaced with www); that he or she logged on to the site and reviewed what was there; and that a printout or other exhibit fairly and accurately reflects what the witness saw. See Johnson-Wooldridge v. Wooldridge, 2001 Ohio App. LEXIS 3319 at *11 (Ohio App. July 26, 2001). See also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002) (admitting on a preliminary injunction motion copies of pages from defendant’s and third party websites (as to the latter of which the furnished “webpages contain[ed] ... the internet domain address from which the image was printed and the date on which it was printed”) because “the declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a reasonable juror in the belief that the documents are what [plaintiff] says they are;” noting the “reduced evidentiary standard in preliminary injunction motions”); Hood v. Dryvit Sys., Inc., 2005 U.S. Dist. LEXIS 27055, at *6-*7 (N.D. Ill Nov. 8, 2005) (affidavit of counsel on summary judgment motion “stating that he ‘retrieved [the documents] off the Dryvit, Inc. corporate website on August 29, 2005.’ Counsel also swears that ‘the web addresses stamped at the bottom of each exhibit were the addresses I retrieved the exhibits from, respectively.’”) (brackets in original; citation omitted); Ampex Corp. v. Cargle, 128 Cal.App.4th 1569, 27 Cal.Rptr.3d 863 (1st Dist. 4th Div. 2005) (printouts from corporate party’s website held self-authenticating and subject to judicial notice under California law); Miriam Osborn Mem. Home Ass’n v. Rye, 9 Misc.3d 1019, 800 N.Y.S.2d 909 (Sup. Ct. Westchester County 2005) (plaintiff “testified at trial as to the manner in which she downloaded, printed and copied the electronic record of the [government website]. In so doing, it was taken from its electronic form and turned into a tangible exhibit.... [T]his Court concludes that ‘the exhibit is a true and accurate representation of such electronic record’”). But see Alston v. Metropolitan Life Ins. Co., No. 1:05CV00121, 2006 WL 3102970 (M.D.N.C. Oct. 27, 2006) (attorney affidavit held insufficient on summary judgment because attorney was ethically precluded from appearing as a witness in the case on behalf of his client and, therefore, was not an adequate affiant).
This last testimony is no different than that required to authenticate a photograph, other replica or demonstrative exhibit. See, e.g., Actonet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 848 (8th Cir. 2000) (“HTML codes may present visual depictions of evidence. We conclude, therefore, that HTML codes are similar enough to photographs to apply the criteria for admission of photographs to the admission of HTML codes”). The witness may be lying or mistaken, but that is true of all testimony and a principal reason for cross-examination. Unless the opponent of the evidence raises a genuine issue as to trustworthiness, testimony of this sort is sufficient to satisfy Rule 901(a), presumptively authenticating the website data and shifting the burden of coming forward to the opponent of the evidence. It is reasonable to indulge a presumption that material on a web site (other than chat room conversations) was placed there by the owner of the site.
The opponent of the evidence must, in fairness, be free to challenge that presumption by adducing facts showing that proffered exhibit does not accurately reflect the contents of a website, or that those contents are not attributable to the owner of the site. First, even if the proffer fairly reflects what was on the site, the data proffered may have been the product of manipulation by hackers (uninvited third parties). See, e.g., Wady v. Provident Life & Accident Ins. Co. of Am., 216 F. Supp. 2d 1060, 1064-1065 (C.D. Cal. 2002) (“Defendants have objected on the grounds that [counsel] has no personal knowledge of who maintains the website, who authored the documents, or the accuracy of their contents” — objections sustained).
Second, the proffer may not fairly reflect what was on the site due to modification — intentional or unintentional, material or immaterial — in the proffered exhibit or testimony.
Third, there may be legitimate questions concerning the ownership of the site or attribution of statements contained on the site. See, e.g., Boim v. Holy Land Found., 511 F.3d 707 (7th Cir. 2007) (plaintiff’s expert relied in part on Internet website postings in which the terrorist organization Hamas took credit for the murder of plaintiffs’ decedent; held, the expert failed sufficiently to elucidate the basis for his conclusion that the website statements were attributable to Hamas and, therefore, the statements were insufficiently authenticated: “Where, as here, the expert appears to be relying to a great extent on web postings to establish a particular fact, and where as a result the factfinder would be unable to evaluate the soundness of his conclusion without hearing the evidence he relied on, we believe the expert must lay out, in greater detail than [plaintiff’s expert] did, the basis for his conclusion that these websites are in fact controlled by Hamas and that the postings he cites can reasonably and reliably be attributed to Hamas”).
Detecting modifications of electronic evidence can be very difficult, if not impossible. That does not mean, however, that nothing is admissible because everything is subject to distortion. The same is true of many kinds of evidence, from testimony to photographs to digital images, but that does not render everything inadmissible. It merely accentuates the need for the judge to focus on all relevant circumstances in assessing admissibility under Fed.R.Evid. 104(a) — and to leave the rest to the jury, under Rule 104(b).
In considering whether the opponent has raised a genuine issue as to trustworthiness, and whether the proponent has satisfied it, the court will look at the totality of the circumstances, including, for example:
• The length of time the data was posted on the site.
• Whether others report having seen it.
• Whether it remains on the website for the court to verify.
• Whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g., financial information from corporations).
• Whether the owner of the site has elsewhere published the same data, in whole or in part.
• Whether others have published the same data, in whole or in part.
• Whether the data has been republished by others who identify the source of the data as the website in question.
A genuine question as to trustworthiness may be established circumstantially. For example, more by way of authentication may be reasonably required of a proponent of Internet evidence who is known to be a skilled computer user and who is suspected of possibly having modified the proffered website data for purposes of creating false evidence. See, e.g., United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (“Jackson needed to show that the web postings in which the white supremacist groups took responsibility for the racist mailing actually were posted by the groups, as opposed to being slipped onto the groups’ web sites by Jackson herself, who was a skilled computer user.”).
In assessing the authenticity of website data, important evidence is normally available from the personnel managing the website (“webmaster” personnel). A webmaster can establish that a particular file, of identifiable content, was placed on the website at a specific time. This may be done through direct testimony or through documentation, which may be generated automatically by the software of the web server. It is possible that the content provider — the author of the material appearing on the site that is in issue — will be someone other than the person who installed the file on the web. In that event, this second witness (or set of documentation) may be necessary to reasonably ensure that the content which appeared on the site is the same as that proffered.
Self-Authentication. Government offices publish an abundance of reports, press releases and other information on their official web sites. Internet publication of a governmental document on an official website constitutes an “official publication” within Federal Rule of Evidence 902(5) (“ Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.”).
Under Rule 902(5), official publications of government offices are self-authenticating. See, e.g., United States ex rel. Parikh v. Premera Blue Cross, 2006 U.S. Dist. LEXIS 70933, at *10 (W.D. Wash. Sept. 29, 2006) (GAO reports and Health and Human Services’ reports found on government websites are self-authenticating under Fed.R.Evid. 902(5)); Hispanic Broad. Corp. v. Educ. Media Found., 2003 U.S. Dist. LEXIS 24804, *20 n. 5 (C.D. Cal. Nov. 3, 2003) (“exhibits which consist of records from government websites, such as the FCC website, are self-authenticating.”); E.E.O.C. v. E.I. Du Pont de Nemours & Co., No. Civ. A. 03-1605, 2004 WL 2347559 (E.D.La. Oct. 18, 2004) (webpage printout sufficiently authenticated where (1) printout contained the address from which it was printed, (2) printout contained the date on which it was printed, (3) court accessed the website and verified that the page existed, and (4) webpage was maintained by a government agency and thus was self-authenticating under Fed.R.Evid. 902(5)); Sannes v. Jeff Wyler Chevrolet, Inc., 1999 U.S.Dist.LEXIS 21748 at *10 n. 3 (S.D. Ohio March 31, 1999) (“The FTC press releases, printed from the FTC’s government world wide web page, are self-authenticating official publications under Rule 902(5) of the Federal Rules of Evidence”); Tippie v. Patnik, 2008 Ohio 1653, 2008 Ohio App. LEXIS 1429 (Ohio App. April 4, 2008) (“The website of the Secretary of State can be considered self-authenticating as an ‘official publication,’ cf. [Ohio] Evid. R. 902(5), like copies of printed material (i.e., newspaper articles) are under [Ohio] Evid. R. 902(6)”) (dissenting opinion); Harvard Mort. Corp. v. Phillips, 2008 Ohio 1132, 2008 Ohio App. LEXIS 1045 (Ohio. App. March 14, 2008) (concurring opinion). See also Elliott Assocs., L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y. 2000) (discussed below; holding that prime rates published on the Federal Reserve Board website satisfy the hearsay exception of Federal Rule of Evidence 803(17)). But see State v. Davis, 141 Wash.2d 798, 854, 10 P.3d 977, 1010 (2000) (no abuse of discretion in excluding, in death penalty case, defendant's proffer of state population statistics obtained from official state website; affirming exclusion on hearsay grounds but stating that “[a]n unauthenticated printout obtained from the Internet does not ... qualify as a self authenticating document under ER 902(e) [the Washington State equivalent of Federal Rule of Evidence 902(5)]”). There is reason to believe, however, that Davis may be limited to its facts. See State v. Rapose, 2004 WL 585856 at *5 (Wash. App. Mar. 25, 2004) (unpublished opinion).
Judicial Notice. Under Federal Rule of Evidence 201(b) and (d), when requested, a court must take judicial notice of facts that are “not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Government website data — particularly data that may be confirmed by the court’s accessing the site — are subject to mandatory judicial notice under Rule 201. See, e.g., Denius v. Dunlap, 330 F.3d 919 (7th Cir. 2003) (district court abused its discretion in withdrawing its judicial notice of information from National Personnel Records Center’s official website); accord Dingle v. BioPort Corp., 270 F.Supp.2d 968 (W.D. Mich. 2003).
A court may take judicial notice of information publicly announced on a party's website, as long as the website's authenticity is not in dispute and it is capable of accurate and ready determination, within Fed.R.Evid. 201. Doron Precision Sys., Inc. v. FAAC, Inc., 423 F.Supp.2d 173 (S.D.N.Y. 2006); Town of Southold v. Town of East Hampton, 406 F.Supp.2d 227 (E.D.N.Y. 2005).
Chat Room Evidence. A proffer of chat room postings generally implicates the same authenticity issues discussed above in connection with web site data, but with a twist. While it is reasonable to indulge a presumption that the contents of a website are fairly attributable to the site’s owner, that does not apply to chat room evidence. By definition, chat room postings are made by third parties, not the owner of the site. Further, chat room participants usually use screen names (pseudonyms) rather than their real names.
Since chat room evidence is often of interest only to the extent that the third party who left a salient posting can be identified, the unique evidentiary issue concerns the type and quantum of evidence necessary to make that identification — or to permit the finder of fact to do so. Evidence sufficient to attribute a chat room posting to a particular individual may include, for example:
• Evidence that the individual used the screen name in question when participating in chat room conversations (either generally or at the site in question).
• Evidence that, when a meeting with the person using the screen name was arranged, the individual in question showed up.
• Evidence that the person using the screen name identified him- or herself as the individual (in chat room conversations or otherwise), especially if that identification is coupled with particularized information unique to the individual, such as a street address or email address.
• Evidence that the individual had in his or her possession information given to the person using the screen name (such as contact information provided by the police in a sting operation).
• Evidence from the hard drive of the individual’s computer reflecting that a user of the computer used the screen name in question.
See generally United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000); United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998); United States v. Burt, 495 F.3d 733, 738-39 (7th Cir. 2007); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002). Compare California v. Von Gunten, No. C035261, 2002 WL 501612 (Cal. App. April 4, 2002) (assault prosecution; email excluded because, inter alia, unlike Tank, “the exchange did not include facts known only to the witness and the fight participant” and there was no direct evidence linking the fight participant to the screen name).
With respect to the dialog itself, a participant in the chat room conversation may authenticate a transcript with testimony based on firsthand knowledge that the transcript fairly and accurately captures the chat. Ford v. State, 274 Ga. App. 695, 697-98, 617 S.E.2d 262, 265-66, cert. denied, 2005 Ga. LEXIS 789 (Ga. Sup. Ct. Nov. 7, 2005) (“we find this situation analogous to the admission of a videotape, which is admissible where the operator of the machine which produced it, or one who personally witnessed the events recorded, testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred. Here, [the witness] personally witnessed the real-time chat recorded in Transcript B as it was taking place, and he testified that the transcript accurately represented the on-line conversation. Under these circumstances, [his] testimony was tantamount to that of a witness to an event and was sufficient to authenticate the transcript”) (internal quotations, citations and original brackets deleted); Adams v. Wyoming, 117 P.3d 1210 (2005) (“Although [the defendant] questioned the authenticity of this document under W.R.E. [Wyoming Rule of Evidence]. 901, the State's witnesses testified the entire dialogue was contained in the folder and no additions or deletions were made;” held, authenticity established; best evidence objection to use of computer printout also overruled because, under Rule 1001(3), ‘[a]n original is defined as including any computer printout or other readable output of data stored in a computer or similar device, which is “shown to reflect the data accurately.... The State's witness testified that the chat log exhibits were exact copies of the communication between the parties contained in the computer and thus, they were either appropriate computer ‘originals’ or duplicates which were properly authenticated. Whether they accurately reflected the contents of the instant messages sent between the parties was an issue for the jury to decide”).
Internet Archives. Websites change over time. Lawsuits focus on particular points in time. The relevant web page may be changed or deleted before litigation begins. Various internet archive services exist that provide snapshots of web pages at various points in time. To the extent that those services, in the ordinary course of their business, accurately retrieve and store copies of the website as it appeared at specified points in time, the stored webpages are admissible. See Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., 2004 U.S. Dist. LEXIS 20845, at *17-!8 (N.D. Ill. Oct. 15, 2004) (Internet archive evidence properly authenticated via certification of archive employee, presumably offered pursuant to Fed. R. Evid. 902(11)). The certification should contain the same elements as set forth in § I(A)(Website Data), with necessary modifications (e.g., the retrieval process may be automated, requiring authentication the automated function, such as that it is used and relied on in the ordinary course of business and produces reliable results). See also St. Luke’s Cataract & Laser Inst. v. Sanderson, 2006 U.S. Dist. LEXIS 28873, at *5-*6 (M.D. Fla. May 12, 2006) (exhibits excluded for lack of authentication; held, “to show that the printouts from Internet Archive are accurate representations of the ... websites [at issue] on various dates since 2000, Plaintiff must provide the Court with a statement or affidavit from an Internet Archive representative with personal knowledge of the contents of the Internet Archive website.... [A]n affidavit by ... [a] representative of Internet Archive with personal knowledge of its contents, verifying that the printouts Plaintiff seeks to admit are true and accurate copies of Internet Archive's records would satisfy Plaintiff's obligation to this Court”).
Evidence that an internet archive reflects that a site carried certain content may be corroborative of other evidence, such as a download from the site by a witness or testimony from a witness. Under Federal Rule of Evidence 104(a) and similar state provisions, in making its determination as to the admissibility of evidence, the court “is not bound by the rules of evidence except those with respect to privileges.” With a proper foundation, internet archive evidence may also form part of the basis of a forensic IT expert’s testimony, in accordance with the strictures of Federal Rule of Evidence 703 and similar state rules.
Temporary Internet Files. When a computer user accesses the Internet, web browsers like Microsoft Explorer temporarily store all accessed images in a Temporary Internet Files folder so that, if the computer user attempts to view the same web page again, the computer is able to retrieve the page much more quickly. Even deleted images in the Temporary Internet Files folder may be retrieved and viewed by an expert using an appropriate program, and expert testimony about this process is sufficient to authenticate the images. See, e.g., United States v. Johnson, 2006 U.S. Dist. LEXIS 6246, at *7-*8 (N.D. Iowa Aug. 31, 2006). The automatic creation of Temporary Internet Files has led to a holding that, in a prosecution for the possession of child pornography, “one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image” (United States v. Stulock, 308 F.3d 922, 925 (8th Cir. 2002)), but that the same images may be admissible under Fed.R.Evid. 404(b) to establish the accused’s knowledge and intent. United States v. Johnson, 2006 U.S. Dist. LEXIS 6246, at *10.
Search Engines. The results generated by widely recognized search engines, like Google or Yahoo!, may be pertinent in litigation — e.g., a trademark action to show dilution of a mark or a privacy/right of publicity action to show appropriation of a likeness. See, e.g. McBee v. Delica Co, 417 F.3d 107, 112 (1st Cir. 2005).
Proper authentication would consist of testimony — or, under Federal Rule of Evidence 902(11) or (12), a certification — from a witness that the witness typed in the website address of the search engine; that he or she logged on to the site; the precise search run by the witness; that the witness reviewed the results of the search; and that a printout or other exhibit fairly and accurately reflects those results. The witness should be someone capable of further averring that he or she, or the witness’s employer, uses the search engine in the ordinary course of business and that it produces accurate results. Further, the testimony or certification should reflect that the witness logged onto some of the websites identified by the search engine to demonstrate, as a circumstantial matter, that the particular search generated accurate results.
Authenticity aside, every extrajudicial statement drawn from a website must satisfy a hearsay exception or exemption if the statement is offered for its truth. See United States v. Jackson, 208 F.3d 633, 637 (7th Cir.) (“The web postings were not statements made by declarants testifying at trial, and they were being offered to prove the truth of the matter asserted. That means they were hearsay.”), cert. denied, 531 U.S. 973 (2000); Savariego v. Melman, 2002 U.S. Dist. LEXIS 8563 at *5 (N.D. Tex. 2002) (excluding on summary judgment “unauthenticated hearsay from an Internet search”); Monotype Imaging, Inc. v Bitstream Inc., 376 F. Supp. 2d 877, 884-85 (N.D. Ill 2005) (“The Court refused to admit Exhibits 15 and 17 for the truth of the matter asserted in them because these exhibits are inadmissible hearsay. The Court admitted Exhibits 15 and 17 only for the limited purpose of proving that the diagrams in those exhibits were displayed on the respective websites on the dates indicated on the exhibits”); United States v. Hernandez, 2007 CCA LEXIS 183 (U.S. Navy-Marine Corps Ct. Crim. App. June 12, 2007) (error to admit evidence of telephone call usage drawn from databases available on the Internet to determine the time zones called and recipients’ names because the Internet evidence “was categorically hearsay, and the [proponent] failed to establish any foundation bringing that source within any hearsay exception”).
To establish that material appeared on a website, it is sufficient for a witness with knowledge to attest to the fact that the witness logged onto the site and to describe what he or she saw. That obviates any hearsay issue as to the contents of the site. Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1109 (D. Or. 2000) (“The only remaining question is whether the content of the website is hearsay under FRE 801.... Here, [plaintiff], by his own account, personally viewed the website and submitted an affidavit detailing specifically what he viewed. Therefore, the contents of the website are not hearsay for purposes of this summary judgment motion”); State v. Rapose, 2004 WL 585856 at *5 (Wash. App. Mar. 25, 2004) (unpublished opinion) (affirming admission of Internet and email documents because “each exhibit was identified and authenticated by the person testifying from personal knowledge of the contents”).
Data Entry. Some website data is entered into Internet-readable format in the same way that a bookkeeper may enter numbers into a computer. This act of data entry is an extrajudicial statement — i.e., assertive nonverbal conduct within Rule 801(a) — which means that the product is hearsay, within Rule 801(c). Since each level of hearsay must satisfy the hearsay rule, under Rule 805 (Hearsay within Hearsay), the act of data entry must be addressed separately from the content of the posted declaration.
Data entry is usually a regularly-conducted activity within Rule 803(6) (or, in the context of a government office, falls within Rule 803(8) (public records exception)). It also often falls within Rule 803(1) (present sense impression exception).
The real question about the data entry function is its accuracy. This is, in substance, an issue of authenticity and should be addressed as part of the requisite authentication foundation whenever a genuine doubt as to trustworthiness has been raised. If the foundational evidence establishes that the data have been entered accurately, the hearsay objection to the data entry function should ordinarily be overruled. See also Rule 807 (residual exception).
Much Internet evidence does not involve data entry, in the sense described above. If the webmaster is simply transferring an image or digitally converting an electronic file into web format, that is a technical process that does not involve assertive non-verbal conduct within Rule 801(a) and is best judged as purely an authentication issue. The difference, analytically, is between the grocery store clerk who punches the price into the check-out computer (this is assertive non-verbal conduct), and the clerk who simply scans the price into the computer (non-assertive behavior). Only assertive non-verbal conduct raises hearsay issues and requires an applicable hearsay exception or exemption.
Business and Public Records. Businesses and government offices publish countless documents on their websites in ordinary course. Provided that all of the traditional criteria are met, these documents will satisfy the hearsay exception for “records” of the business or public office involved, under Rules 803(6) or (8). Reliability and trustworthiness are said to be presumptively established by the fact of actual reliance in the regular course of an enterprise's activities. Johnson-Wooldridge v. Wooldridge, 2001 Ohio App. LEXIS 3319 at *12-*13 (Ohio App. July 26, 2001) (Internet public record). (Recall that public records which satisfy Rule 803(8) are presumptively authentic under Rule 901(b)(7) (if they derive from a "public office where items of this nature are kept") and even self-authenticating under Rule 902(5) (discussed above in note 6 and the accompanying text).)
As long as the website data constitute business or public records, this quality is not lost simply because the printout or other image that is proffered into evidence was generated for litigation purposes. Each digital data entry contained on the website is itself a Rule 803(6) or (8) "record" because it is a "data compilation, in any form." See, e.g., United States v. Sanders, 749 F.2d 195, 198 (5th Cir. 1984) (dealing with computerized records); United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988) (same).
Consequently, if each entry has been made in conformance with Rule 803(6) or Rule 803(8), the proffered output satisfies the hearsay exception even if it: (a) was not printed out at or near the time of the events recorded (as long as the entries were timely made), (b) was not prepared in ordinary course (but, e.g., for trial), and (c) is not in the usual form (but, e.g., has been converted into graphic form). See, e.g., United States v. Russo, 480 F.2d 1228, 1240 (6th Cir.), cert. denied, 414 U.S. 1157 (1973) (dealing with computerized records).
If the data are simply downloaded into a printout, they do not lose their business-record character. To the extent that significant selection, correction and interpretation are involved, their reliability and authenticity may be questioned. See, e.g., Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 631, 633 (2d Cir. 1994) (dealing with computerized business records).
While website data may constitute business records of the owner of the site, they are not business records of the website hosting company. This is a service that may be provided by an Internet service provider (e.g., America Online, MSN, ATT), and the cases frequently blend the two concepts in discussing the function of website hosting companies. “Internet service providers...are merely conduits.... The fact that the Internet service provider may be able to retrieve information that its customers posted...does not turn that material into a business record of the Internet service provider.” United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (“The Internet service providers did not themselves post what was on [the relevant] web sites. [Defendant] presented no evidence that the Internet service providers even monitored the contents of those web sites.”).
Rules 803(6) and (8) effectively incorporate an authentication requirement. Rule 803(6) contemplates the admission of hearsay, if its criteria are satisfied, "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Rule 803(8) contains substantially identical language. This trustworthiness criterion parallels the Rule 901(a) requirement of "evidence sufficient to support a finding that the matter in question is what its proponent claims." As a result, untrustworthy proffers of business or public records may be excluded on hearsay as well as authenticity grounds. United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (“Even if these web postings did qualify for the business records hearsay exception, ‘the business records are inadmissible if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness’”) (citation omitted).
Market Reports & Tables. Rule 803(17) excepts from the hearsay rule “Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” A number of cases have applied this rule to commercial websites furnishing such data as interest rates (Elliott Assocs., L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y. 2000) (prime rates published on the Bloomberg website satisfy the hearsay exception of Federal Rule of Evidence 803(17)) and blue-book prices of used cars. (See, e.g., State v. Erickstad, 620 N.W.2d 136, 145 (N.D. 2000) (citing Irby-Greene v. M.O.R., Inc., 79 F.Supp.2d 630, 636 n.22 (E.D.Va. 2000))). This rationale plainly extends to the other sorts of traditional information admitted under Rule 803(17), such as tables reflecting the prices of such items as stock, bonds and currency; real estate listings; and telephone books.
Admissions. Website data published by a litigant comprise admissions of that litigant when offered by an opponent. See, e.g., Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1109 (D. Or. 2000) (“the representations made by defendants on the website are admissible as admissions of the party-opponent under FRE 801(d)(2)(A)”); Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., 2004 U.S. Dist. LEXIS 20845, at *16-17 (N.D. Ill. Oct. 14, 2004); United States v. Porter, 184 Fed. Appx. 112, 2006 U.S. App. LEXIS 14166, at *4-*5 (2d Cir. June 5, 2006) (authenticated chat room transcripts of defendant properly introduced by government as admissions of party opponent); United States v. Burt, 495 F.3d 733, 738 (7th Cir. 2007) (“Those portions of the chat which represent [defendant] Burt's writings were properly admissible as admissions by a party opponent under FED. R. EVID. 801(d)(2)”).
Accordingly, even if the owner of a website may not offer data from the site into evidence, because the proffer is hearsay when the owner attempts to do so, an opposing party is authorized to offer it as an admission of the owner. See, e.g., Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 631, 633-34 (2d Cir. 1994) (dealing with computerized business records); Momah v. Bharti, 2008 Wash. App. LEXIS 940 (Wash. App. April 28, 2008) (posting self-laudatory article and other hearsay on website held an adoptive admission: “By providing the content as a means of publicizing himself, Bharti effectively manifests his belief in the truth of the information. Even if the biographical information, newspaper articles, and client comments contain hearsay, Bharti has manifested his belief in the truth of those statements. They are not hearsay under ER 801(d)(2)”); Mannatech Inc. v. Glycobiotics Int’l, Inc., 2007 U.S. Dist. LEXIS 91946 (N.D. Tex. Dec. 14, 2007) (customer testimonials contained on party’s website admitted; without deciding the issue, the Court indicated that the testimonials could be admissible under Rule 801(d)(2) — presumably 801(d)(2)(A), (B) or (C) — citing PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1351 (Fed. Cir. 2007), for the proposition that: “[T]here is no prohibition against using the admissions of a party, whether in the form of marketing materials or otherwise, as evidence in an infringement action....”).
The postings of a party in a chat room conversation constitute admissions, and the non-party’s half of the conversation is commonly offered not for the truth of the matter asserted (although it could be) but, rather, to provide context for the party’s statements, which comprise admissions. United States v. Burt, 495 F.3d 733, 738-39 (7th Cir. 2007).
Non-Hearsay Proffers. Not uncommonly, website data is not offered for the truth of the matters asserted but rather solely to show the fact that they were published on the web, either by one of the litigants or by unaffiliated third parties. For example, in a punitive damages proceeding, the fact of Internet publication may be relevant to show that the defendant published untruths for the public to rely on. See, e.g., Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1109 (D. Or. 2000).
Or, in a trademark action, Internet listings or advertisements may be relevant on the issue of consumer confusion or purchaser understanding. See, e.g. ,Microware Sys. Corp. v. Apple Computer, Inc., 2000 U.S.Dist.LEXIS 3653 at *7 n.2 (S.D. Iowa March 15, 2000) (“Microware’s internet and e-mail submissions are not ideal proffers of evidence since their authors cannot be cross-examined. However, in a case involving an industry where e-mail and internet communication are a fact of life, these technical deficiencies must go to the weight of such evidence, rather than to their admissibility. In any case, to the extent any of these stray comments bear on the issue of confusion, they come in for that purpose...”) (citations omitted); Mid City Bowling Lanes & Sports Palace, Inc. v. Don Carter’s All Star Lanes-Sunrise Ltd., 1998 U.S.Dist.LEXIS 3297 at *5-*6 (E.D.La. March 12, 1998).
In neither of these circumstances is the website data offered for its truth. Accordingly, no hearsay issues arise. Similarly, when a chat room discussion is offered against a party who participated in it, the non-party’s half of the conversation is commonly offered not for the truth of the matter asserted (although it could be) but, rather, to provide context for the party’s statements, which comprise admissions. United States v. Burt, 495 F.3d 733, 738-39 (7th Cir. 2007).
Because chats are conducted using screen names, an exhibit may be prepared that substitutes real names (otherwise established) for screen names. The Seventh Circuit has ruled that altering otherwise-authenticated chat room postings by substituting real names for screen names does not implicate hearsay concerns but, rather, converts the exhibit into a demonstrative exhibit, admissible in the discretion of the court, subject to Federal Rule of Evidence 403. United States v. Burt, 495 F.3d 733, 739 (7th Cir. 2007).
Judicial Skepticism. As they were with computerized evidence prior to the mid-1990s, some judges remain skeptical of the reliability of anything derived from the Internet. See, e.g., St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999). While there is no gainsaying a healthy judicial skepticism of any evidence that is subject to ready, and potentially undetectable, manipulation, there is much on the web which is not subject to serious dispute and which may be highly probative. To keep matters in perspective, there is very little in the way of traditional documentary or visual evidence that is not subject to manipulation and distortion. As with so many of the trial judge’s duties, this is a matter that can only be resolved on a case- by-case basis.
Like Internet evidence, email evidence raises both authentication and hearsay issues. The general principles of admissibility are essentially the same since email is simply a distinctive type of Internet evidence — namely, the use of the Internet to send personalized communications.
The authenticity of email evidence is governed by Federal Rule of Evidence 901(a), which requires only “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Under Fed.R.Evid. 901(b)(4), email may be authenticated by reference to its “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” See generally United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000); Bloom v. Comw. of Virginia, 34 Va. App. 364, 370, 542 S.E.2d 18, 20-21, aff’d, 262 Va. 814, 554 S.E.2d 84 (2001).
If email is produced by a party from the party’s files and on its face purports to have been sent by that party, these circumstances alone may suffice to establish authenticity. See, e.g., Wells v. Xpedx, 2007 U.S. Dist. LEXIS 67000 (M.D. Fla. Sept. 11, 2007) (“Documents produced during discovery are deemed authentic when offered by a party opponent”); Sklar v. Clough, 2007 U.S. Dist. LEXIS 49248 (N.D. Ga. July 6, 2007) (“The e-mails in question were produced by Defendants during the discovery process. Such documents are deemed authentic when offered by a party opponent”); accord Superhighway Consulting, Inc. v. Techwave, Inc., 1999 U.S.Dist.LEXIS 17910, at *6 (N.D.Ill. Nov. 15, 1999); Dominion Nutrition, Inc. v. Cesca, 2006 U.S. Dist. LEXIS 15515, at *16 (N.D. Ill. March 2, 2006).
Further, a party’s failure to challenge as inauthentic emails sent by it or its counsel may be deemed sufficient evidence of the emails’ authenticity. Lemme v. County of Yuma, 2006 U.S. Dist. LEXIS 76317, at *23 (D. Ariz. Oct. 19, 2006) (“Because Plaintiff and her counsel have the ability to authenticate those documents, but do not specifically challenge the authenticity thereof, the objections are overruled”).
Authenticity may also be established by testimony of a witness who sent or received the emails — in essence, that the emails are the personal correspondence of the witness. Tibbetts v. RadioShack Corp., 2004 U.S. Dist. LEXIS 19835, at *44 (N.D. Ill. Sept. 30, 2004).
Testimony from a witness with knowledge that the emails were exchanged with another person comprises prima facie evidence of authenticity. Ussery v. State, 2008 Tex. App. LEXIS 741 (Tex. App. Jan. 30, 2008) (approving admission where the victim “testified, identifying the e-mail communications as fair and accurate copies of actual e-mails she exchanged with appellant. She thus provided testimony authenticating the e-mails.”); United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (“[T]he standard for authentication is one of ‘reasonable likelihood’... and is ‘minimal’.... both the informant and Agent Berglas testified that the exhibits were in fact accurate records of [defendant’s] conversations with Lorie and Julie. Based on their testimony, a reasonable juror could have found that the exhibits did represent those conversations, notwithstanding that the e-mails and online chats were editable”).
Testimony from a witness (at least, a hostile witness) that email appeared to be written in her “style” and that the content of the email — which was familiar to the witness — would by its nature be known to few others may suffice to constitute circumstantial evidence of authentication. People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007) (among other things, the witness said she could not remember whether she had sent the email, although “I won’t say I didn’t because I don’t remember for sure if I did or not;” she acknowledged that there were a few emails that she and the ostensible recipient sent back and forth; and she testified that the document “does look like my style of writing.” Note: the recipient also testified that she remembered receiving the email).
It is important, for authentication purposes, that email generated by a business or other entity on its face generally reflects the identity of the organization. The name of the organization, usually in some abbreviated form, ordinarily appears in the email address of the sender (after the @ symbol). This mark of origin has been held to self-authenticate the email as having been sent by the organization, under Fed.R.Evid. 902(7), which provides for self-authentication of: “Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.” See Superhighway Consulting, Inc. v. Techwave, Inc., 1999 U.S.Dist.LEXIS 17910 at *6 (N.D.Ill. Nov. 15, 1999). Where the email reflects the entire email name of a party (and not just the mark of origin), it has been held to comprise a party admission of origin. Middlebrook v. Anderson, 2005 U.S. Dist. LEXIS 1976, at *14 (N.D. Tex. Feb. 11, 2005) (jurisdictional motion).
Independently, circumstantial indicia that may suffice to establish that proffered email were sent, or were sent by a specific person, include evidence that:
• A witness or entity received the email.
• The email bore the customary format of an email, including the addresses of the sender and recipient. Ecology Servs. v. GranTurk Equip., Inc., 443 F.Supp.2d 756, 762 n.1 (D.Md. 2006) (excluding purported email which was not accompanied by an authenticating affidavit and which did not “bear the customary formatting of a printed e-mail message, indicating the sender, recipient, date, and subject”).
• The address of the recipient is consistent with the email address on other emails sent by the same sender. Shea v. State, 167 S.W.3d 98, 105 (Tex. App. 2005).
• This email contained the typewritten name or nickname of the recipient (and, perhaps, the sender) in the body of the email. Interest of F.P., 878 A.2d 91 (Pa. Super. 2005) (“He referred to himself by his first name”). Thus, too, courts have looked at the “electronic ‘signature’” at the end of the email message identifying the name and business affiliation of the sender. See, e.g., Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (held, email by one employee forwarded to party opponent by a fellow employee — containing the electronic signature of the latter — constitutes an admission of a party opponent and thus is not hearsay).
• The email recited matters that would normally be known only to the individual who is alleged to have sent it (or to a discrete number of persons including this individual).
• Following receipt of the email, the recipient witness had a discussion with the individual who purportedly sent it, and the conversation reflected this individual’s knowledge of the contents of the email.
See generally United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000). See also United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006) (emails admissible pursuant to (1) Fed.R.Evid. 901(b)(4) because they bear “many distinctive characteristics, including the actual e-mail addresses containing the ‘@’ symbol, ... the name of the person connected to the address...[,] the name of the sender or recipient in the bodies of the e-mail, in the signature blocks at the end of the e-mail, in the ‘To:’ and ‘From:’ headings, and by signature of the sender [and t]he contents of the e-mails also authenticate them as being from the purported sender and to the purported recipient, containing as they do discussions of various identifiable ‘matters,” and (2) Fed.R.Evid. 901(b)(3), under which otherwise unauthenticated emails may be authenticated by the jury, which may compare them to the emails authenticated pursuant to Rule 901(b)(4)); State v. Taylor, 632 S.E.2d 218, 231 (N.C. App. 2006) (quoting and following Safavian); Dominion Nutrition, Inc. v. Cesca, 2006 U.S. Dist. LEXIS 15515, at *16 (N.D. Ill. March 2, 2006) (“E-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated.”) (quoting Fenje v. Feld, 301 F. Supp. 2d 781, 809 (N.D. Ill. 2003), aff'd, 398 F.3d 620 (7th Cir. 2005)); Bloom v. Comw. of Virginia, 34 Va. App. 364, 370, 542 S.E.2d 18, 20-21 (2001); Massimo v. State, 144 S.W.3d 210, 215-16 (Tex. App. 2004) (unpublished opinion); Simon v. State, 279 Ga. App. 844, 847-48, 632 S.E.2d 723, 726-27 (2006); Swanton v. Brigeois-Ashton, 2006 Wash. App. LEXIS 2067, at *6-*7 (Wash App. Sept. 18, 2006); cf. Doe v. Nevada, 2006 U.S. Dist. LEXIS 63971, at *38 (D. Nev. 2006) (email deemed unauthenticated “absent proper authentication, or other evidence indicating that the email was sent or that [the alleged recipient] actually received the document”).
As with all other forms of authentication, the testimony of a witness with knowledge is prerequisite to authenticate email. Petroleum Sales, Inc. v. Valero Refining Co., 2006 U.S. Dist. LEXIS 90419, at *32 (N.D. Cal. Dec. 14, 2006) (emails excluded on summary judgment absent any evidence of the “accuracy or genuineness of the documents based on personal knowledge or otherwise”); Ryan v. Shawnee Mission Unified School Dist., 437 F.Supp.2d 1233, 1235-36 (D. Kan. 2006) (same; arguably dicta). It is insufficient to proffer email through a witness with no knowledge of the transmissions at issue, unless the witness has sufficient technical knowledge of the process to be in a position to authenticate the email through expert testimony. See, e.g., Richard Howard, Inc. v. Hogg, 1996 Ohio App. LEXIS 5533 at *8 (Ohio App. Nov. 19, 1996) (affirming exclusion of email where the authenticating witness “was neither the recipient nor the sender of the E-mail transmissions and he offered no other details establishing his personal knowledge that these messages were actually sent or received by the parties involved. Furthermore, the transmissions were not authenticated by any other means”).
Transcriptions of email or text message exchanges, the originals of which have been lost through no fault of the proponent, may be authenticated by testimony of a witness with knowledge that he or she transcribed them and that they accurately reflect the contents of the email or text message exchange. See, e.g., United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007) (cell phone text messages transcribed before ISP deleted them); Laughner v. Indiana, 769 N.E.2d 1147 (Ind. App. 2002) (AOL instant messages).
There are a variety of technical means by which email transmissions may be traced. See, e.g., Clement v. California Dep’t of Corrections, 2002 U.S. Dist. LEXIS 17426 at *32 (N.D. Cal. Sept. 9, 2002) (“major e-mail providers include a coded Internet Protocol address (IP address) in the header of every e-mail.... The IP address allows the recipient of an e-mail to identify the sender by contacting the service provider”).
Therefore, if serious authentication issues arise, a technical witness may be of assistance. (Since authentication issues are decided by the court under Federal Rule of Evidence 104(a), live testimony from such a witness is not essential; an affidavit or declaration may be equally effective.) This may become important, for example, in circumstances where a person or entity denies sending an email, or denies receipt of an email and has not engaged in conduct that furnishes circumstantial evidence of receipt (such as a subsequent communication reflecting knowledge of the contents of the email). See, e.g., Hood-O’Hara v. Wills, 873 A.2d 757, 760 & n.6 (Pa. Super. 2005) (authenticity not established where person to whom email name belonged denied sending email and testified that problems in the past had required her to modify her email account on at least one prior occasion); Ellison v. Robertson, 189 F.Supp.2d 1051, 1057 n.7 (C.D. Cal. 2002) (“Plaintiff has provided no evidence that AOL actually did receive the email. To the contrary, Plaintiff's former counsel states that while she received an acknowledgment of receipt for her April 17, 2000, email from [a local Internet provider], no such acknowledgment came from AOL”); Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055, 1072 (C.D. Cal. 2002) (“Plaintiff provides no evidence that [defendant Internet service] ever received the reply email in response to its welcome confirmation email”).
Absent a showing of reason to disbelieve a sender’s or recipient’s representations concerning the authenticity of email, the court may decline to permit discovery into the computer system of the sender/recipient in light of the intrusion that forensic discovery would involve. Williams v. Massachusetts Mutual Life Ins. Co., 226 F.R.D. 144, 146 (N.D. Ill 2005).
While it is true that an email may be sent by anyone who, with a password, gains access to another’s email account, similar uncertainties exist with traditional documents. Therefore, there is no need for separate rules of admissibility. See, e.g., Interest of F.P., 878 A.2d 91 (Pa. Super. 2005) (just as an email can be faked, a “signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law.”).
The hearsay issues associated with email are largely the same as those associated with conventional correspondence. An email offered for the truth of its contents is hearsay and must satisfy an applicable hearsay exception. See, e.g., Hood-O’Hara v. Wills, 873 A.2d 757, 760 (Pa. Super. 2005).
Note that merely notarizing an email does not render it non-hearsay. Shah v. Flagstar Bank, 2007 Mich. App. LEXIS 2678 (Mich. App. Nov. 29, 2007) (“Although the signature of the vice-president on a copy of the email was notarized, it was not the equivalent of an affidavit because the author did not swear to the accuracy of his answers or indicate that his answers were based on personal knowledge.”). A certification satisfying Fed.R.Evid. 902(11) or (12), however, may operate to satisfy hearsay concerns, as those Rules provide an alternative means of satisfying the business records exception to the hearsay rule without the necessity of calling a live witness. As discussed below, the application of the business records exception to email is uneven.
The prevalence and ease of use of email, particularly in the business setting, makes it attractive simply to assume that all email generated at or by a business falls under the business-records exception to the hearsay rule. That assumption would be incorrect, although the cases are not entirely in accord as to where precisely to draw the line between business-record emails and non-business emails.
What Is a Business Record? Or a Present Sense Impression? In United States v. Ferber, 966 F.Supp. 90 (D. Mass. 1997), the government offered into evidence a multi-paragraph email from a subordinate to his superior describing a telephone conversation with the defendant (not a fellow employee). In that conversation, the defendant inculpated himself, and the email so reflected. Chief Judge Young rejected the proffer under Fed.R.Evid. 803(6) because, “while it may have been [the employee’s] routine business practice to make such records, there was not sufficient evidence that [his employer] required such records to be maintained.... [I]n order for a document to be admitted as a business record, there must be some evidence of a business duty to make and regularly maintain records of this type.” Id., 996 F.Supp. at 98. The Ferber Court nonetheless admitted the email, but under 803(1), the hearsay exception for present sense impressions. See also State of New York v. Microsoft Corp., 2002 U.S. Dist. LEXIS 7683 at *9 (D.D.C. April 12, 2002) (“While Mr. Glaser's email [recounting a meeting] may have been ‘kept in the course’ of RealNetworks regularly conducted business activity, Plaintiffs have not, on the present record, established that it was the ‘regular practice’ of RealNetworks employees to write and maintain such emails.”) (separately holding the present sense impression exception inapplicable); Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp. 2d 698, 707 (E.D. Va. 2004) (“Email is far less of a systematic business activity than a monthly inventory printout”), quoting Monotype Corp. v. Intl. Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994); Trade Finance Partners, LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008) (email from defendant’s principal recounting conversation with non-party held not a present sense impression but an inadmissible “calculated narration”).
Cases finding email, in various circumstances, to constitute business records include: United States v. Stein, 2007 U.S. Dist. LEXIS 76201 (S.D.N.Y. Oct. 15, 2007) (rejecting the contention that the proponent must “show that the e-mails at issue were created pursuant to established company procedures for the systematic or routine making of company records.” Held, “regularity of making such records and of the business activity is all that is required. Although the phrase ‘business duty’ appears frequently in Rule 803(6) cases, the defendants read the phrase too narrowly. The phrase ‘business duty’ is used interchangeably with phrases such as ‘[being] part of a business routine’ or ‘[acting] in the regular course’ to describe the requirement that the declarant be someone inside the business, not a third party”); LeBlanc v. Nortel Networks Corp., 2006 U.S. Dist. LEXIS 17785, at *16 (M.D. Ga. March 30, 2006) (finding emails likely to be admissible under the business records exception of Fed.R.Evid. 803(6)); State v. Sherrills, 2008 Ohio 1950, 2008 Ohio App. LEXIS 1662 (Ohio App. April 24, 2008) (properly authenticated emails sent by criminal defendant established to be business records of IT Security Manager, who had custody and control of the server that captured all emails sent from the business) (note: this appears to be an authentication analysis framed in hearsay terms, which is understandable in light of the trustworthiness requirement of Rule 803(6)); State v. Reynolds, 2007 Iowa App. LEXIS 232 (Iowa App. Feb. 28, 2007) (email received by Bank from Federal Reserve in ordinary course of business admissible in light of evidence that “[t]he bank customarily kept these reports and relied upon them as part of its business”).
Hearsay within Hearsay. Because business records are written without regard for the rules of evidence, they commonly contain multiple layers of hearsay. Under Federal Rule of Evidence 805, each layer of hearsay must independently satisfy an exception to the hearsay rule. Absent that, any hearsay portion of an email that is offered for the truth will be excluded. See, e.g., State of New York v. Microsoft Corp., 2002 U.S. Dist. LEXIS 7683 at *14 (D.D.C. April 12, 2002) (“‘If both the source and the recorder of the information, as well as every other participant in the chain producing the record, are acting in the regular course of business, the multiple hearsay is excused by Rule 803(6). If the source of the information is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record. The outsider's statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course of business have’”) (citation omitted); Trade Finance Partners, LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008) (email from defendant’s principal recounting conversation with non-party excluded; catchall exception of Fed.R.Evid. 807 not satisfied).
Admission of Party Opponent. Under Fed.R.Evid. 801(d)(2), emails sent by party opponents constitute admissions and are not hearsay. See, e.g., United States. v. Brown, 459 F.3d 509, 528 n. 17 (5th Cir. 2006); United States v. Safavian, 435 F. Supp. 2d 36, 43-44 (D.D.C. 2006); MGM Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 9636063, 973-74 (C.D. Cal. 2006); Riisna v. ABC, Inc., 2002 U.S. Dist. LEXIS 16969 at *9-*10 (S.D.N.Y. Sept. 11, 2002); State v. Hibberd, 2006 Wash. App. LEXIS 11151, at *24-*25 (Wash. App. June 14, 2006). The email address itself, which reflects that it originates from a party, may be admissible as a party admission. Middlebrook v. Anderson, 2005 U.S. Dist. LEXIS 1976, at *14 (N.D. Tex. Feb. 11, 2005) (jurisdictional motion). See also Discover Re Managers, Inc. v. Preferred Employers Group, Inc., 2006 U.S. Dist. LEXIS 71818, at *22 (D. Conn. Sept. 29, 2006) (“e-mail correspondence with their e-mail addresses designating where they may be located [i.e., reflecting the authors’ respective corporate employers’ names after the @ symbol] combined with the subject matter of the e-mail itself” coupled with testimony of a witness with knowledge constitutes sufficient circumstantial evidence of the authors’ agency relationships with their corporate employers for purposes of Fed.R.Evid. 801(d)).
Further, an email from a party opponent that forwards another email may comprise an adoptive admission of the original message, depending on the text of the forwarding email. Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (one of plaintiff’s employees “incorporated and adopted the contents” of an email message from a second of plaintiff’s employees when she forwarded it to the defendant with a cover note that “manifested an adoption or belief in [the] truth” of the information contained in the original email, within Fed.R.Evid. 801(d)(2)(B)). If there is not an adoptive admission, however, the forwarded email chain may comprise hearsay-within-hearsay. Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp. 2d 698, 707 (E.D. Va. 2004).
Excited Utterance. In dicta, the Oregon Court of Appeals has indicated that, in appropriate circumstances, an email message might fall within the excited utterance exception to the hearsay rule. State v. Cunningham, 40 P.3d 1065, 1076 n.8 (2002). (The federal excited utterance exception, contained in Fed.R.Evid. 803(2), is identical to the Oregon exception, Oregon Rule 803(2).)
State of Mind. Email may be admissible to demonstrate a party’s then-existing state of mind, within Fed.R.Evid. 803(3). United States v. Safavian, 435 F. Supp. 2d 36, 44 (D.D.C. 2006); Dodart v. Young Again Prods., 2006 U.S. Dist. LEXIS 72122, *78-*79 (D. Utah Sept. 29, 2006); Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 452 F. Supp. 2d 772, 786 (W.D. Mich. 2006). Email may also be admissible to prove state of mind as non-hearsay under Fed.R.Evid. 801(c). United States. v. Brown, 459 F.3d 509, 528 n. 17 (5th Cir. 2006).
Other Non-Hearsay Uses. Not all extrajudicial statements are hearsay or, more precisely, need not be offered for hearsay purposes. The contents of an authenticated email may, for example, constitute a verbal act — e.g., constitute defamation or the offer or acceptance of a contract. Middlebrook v. Anderson, 2005 U.S. Dist. LEXIS 1976, at *14 (N.D. Tex. Feb. 11, 2005) (jurisdictional motion); Tibbetts v. RadioShack Corp., 2004 U.S. Dist. LEXIS 19835, at *45 (N.D. Ill. Sept. 30, 2004).
An email may itself reflect the conduct at issue. See United States v. Safavian, 435 F. Supp. 2d 36, 44 (D.D.C. 2006) (certain emails themselves comprised “lobbying work” of defendant Jack Abramoff).
Email may be received reflect (as opposed to assert) consumer confusion in a trademark infringement or unfair competition action. Dodart v. Young Again Prods., 2006 U.S. Dist. LEXIS 72122, *77-*78 (D. Utah Sept. 29, 2006).
Email may be admitted to reflect the fact of third party statements. Damon's Restaurants, Inc. v. Eileen K Inc., No. C2 04 1028, 2006 WL 3290891 (S.D. Ohio Nov. 13, 2006) (consumer complaints in a franchise dispute); United States v. Dupre, 462 F.3d 131 (2d Cir. 2006) (non-testifying investors emails admitted in fraud prosecution to provide context for emails sent by defendant, which were admissions pursuant to Rule 801(d)(2)).
An email may also be admissible to show a non-party’s state of mind. See Trade Finance Partners, LLC v. AAR Corp., 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008) (email from non-party to defendant admissible to show non-party “strongly disfavored new long term contracts with [defendant]”).
Email may also be admissible for the non-hearsay purpose of showing the effect on the listener. See, e.g., Rombom v. Weberman, 2002 N.Y. Misc. LEXIS 769 at *20 (Sup. Ct. Kings Cty. June 13, 2002) (“since plaintiff introduced the e-mails to establish their effect upon plaintiff, as opposed to the truth of their content, the e-mails did not constitute inadmissible hearsay”).
Email Address. A party’s chosen email address may itself be admissible as evidence of the party’s state of mind. See, e.g. Illinois v. Mertz, 218 Ill.2d 1, 842 N.E.2d 618 (2005), reh'g denied (Jan. 23, 2006) (murder prosecution; proper for trial court to admit evidence that defendant's email address was “Cereal Kilr 2000” because it provided insight into his frame of mind).
Privilege issues — particularly, waiver issues — arise in a number of ways in connection with email.
First, a question of waiver may be presented depending on the security of (and reasonable expectation of privacy for) any email that is sent over a particular email system. Privilege may be lost by using an email system that is known by the user to be open to inspection by a person outside the privileged relationship. Thus, for example, an employee’s use of a corporate computer to transmit or receive privileged communications waives the privilege when the employee is on notice that the employer reserves the right to review the communications. United States v. Etkin, 2008 U.S. Dist. LEXIS 12834 (S.D.N.Y. Feb. 19, 2008) (employees do not have a reasonable expectation of privacy in the contents of their work computers when their employers communicate to them via a flash-screen warning when they log on a policy under which the employer may monitor or inspect the computers at any time); In Re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005) (four-part waiver test: “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?”); Curto v. Medical World Communs., Inc., , 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006) (no waiver where employee deleted all her personal files, including emails, from two company-issued laptops before returning them to her employer, where the laptops were not connected to the corporate server, and there was no monitoring of her email traffic during her employment; irrelevant that, two years later, her employer’s forensic computer consultant was able to retrieve deleted data from the laptops).
Second, waiver issues arise in connection with the logging of privileged emails in accordance with provisions such as Federal Rule of Civil Procedure 26(b)(5)(A), which requires a privilege log identifying all relevant information that is subject to a claim of attorney-client privilege or work product protection.
Failure to log a privileged email that its not produced may be held to waive the privilege otherwise attaching to the email. Compare Nnebe v. Daus, 2007 U.S. Dist. LEXIS 32981 (S.D.N.Y. May 3, 2007) (“‛Withholding privileged materials without including the material on a privilege log pursuant to Rule 26(b)(5) ‘may be viewed as a waiver of the privilege or protection.’ Fed. R. Civ. P. 26 advisory committee's note”) with C.T. v. Liberal School District, 2007 U.S. Dist. LEXIS 38177 (D. Kan. May 24, 2007) (“While the court could find that plaintiff ... has waived his claims of privilege due to the insufficiency of his privilege log, ‘in the absence of bad faith on the part of the non-moving party in preparing the ... privilege log, ... the Court will decline to find waiver’ and instead require the non-moving party to supplement his privilege log”).
Even logging a privileged email may be insufficient to afford protection to attachments to the email, unless the attachments are themselves logged. C.T. v. Liberal School Dist., 2008 U.S. Dist. LEXIS 5863 (D. Kan. Jan. 25, 2008) (where plaintiff listed a series of emails on his privilege log, but did not separately list the attachments, held: “any claim of privilege plaintiff might wish to raise as to those documents has been waived, and the attached documents, to the extent they are responsive to defendants' document requests, shall be produced. Plaintiff has had ample opportunity to list these attachments on ... the privilege logs....”).
Third, privilege may attach to otherwise unprivileged emails that are sent to an attorney in the course, and for the purpose, of obtaining legal advice. Barton v. Zimmer Inc., 2008 U.S. Dist. LEXIS 1296 (N.D. Ind. Jan. 7, 2008) (“the very fact that non-privileged information was communicated to an attorney may itself be privileged, even if that underlying information remains unprotected.” “As applied to e-mails, this means that even though one e-mail is not privileged, a second e-mail forwarding the prior e-mail to counsel might be privileged in its entirety....”). Nevertheless, the transmitted, inherently unprivileged email will have to be produced in some form. If it were not, that would raise serious spoliation issues.
D. Text Messages
Authenticity. Text messages are effectively emails sent by cell phone but they present unique problems because they are transitory. A recurring factual scenario involves one party transcribing or copying text messages only to realize thereafter that the texts have been purged by the carrier. Generally, testimony of accurate transcription, together with whatever other corroboration may be available, is sufficient prima facie evidence of authenticity. For example, in United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007), a drug conspiracy prosecution, the DEA executed a search warrant to obtain, inter alia, the defendant’s cell phone. The DEA agent found text messages found on the phone. He testified that he accurately transcribed all texts verbatim, including the time, date and all senders and recipients. He did not immediately print out the texts and, two weeks later, when the agent reviewed the phone again, he realized that the contents were no longer stored on it. A subpoena served on the carrier was fruitless because the carrier had purged the texts from its system as well. The government sought to introduce the written transcript as evidence at trial, and the defense objected because it did not have an opportunity to review the original emails. The Culberson Court held that, under the liberal standards of Fed.R.Evid. 901(a), the transcription was held sufficiently authenticated by the testimony of (i) the agent, (ii) one of the co-conspirators, and (iii) perhaps other co-conspirators as to the accuracy of the transcription.
Best Evidence. Transcriptions of text messages have been held not to violate the best evidence rule if the proponent satisfies Fed.R.Evid. 1004(1), which provides that an original is not required when “[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith....” See United States v. Culberson, 2007 U.S. Dist. LEXIS 35276 (E.D. Mich. May 15, 2007) (holding that the defendant failed to carry his burden of establishing bad faith and that the DEA agent’s testimony that the emails were unavailable, and that they could not be obtained from cell phone carriers, was sufficient to establish unavailability); State v. Espiritu, 117 Haw. 127, 176 P.3d 885 (Haw. Sup. Ct. 2008) (“Although HRE [Hawaii Rule of Evidence] Rule 1002 would ordinarily preclude the admission of testimony about the text messages because such testimony is not an original, the testimony here is admissible because HRE Rule 1004 applies to the text messages such that other evidence may be admitted to prove the content of the text messages. HRE Rule 1004 provides an exception to the original writings requirement of HRE Rule 1002.... The plain language of HRE Rule 1004 states that an original or duplicate is not required to prove the contents of a writing or recording so long as the originals are lost or destroyed and such loss or destruction was not due to the bad faith of the proponent of the evidence”).
Hearsay. The Hawaii Supreme Court relied on the exception for refreshed recollection under the state equivalent of Federal Rule of Evidence 612 to affirm the introduction of text messages read into the record from a police report, in State v. Espiritu, 117 Haw. 127, 176 P.3d 885 (Haw. Sup. Ct. 2008) (“Petitioner's argument that the Complainant was not using the report to refresh her memory but was instead using the report to recite verbatim the text messages is unpersuasive.... Petitioner accurately recalled the gist or the general nature of each text message prior to viewing the police report”).
* Gregory P. Joseph Law Offices LLC, New York. Fellow, American College of Trial Lawyers; Chair, American Bar Association Section of Litigation (1997-98), and member, U.S. Judicial Conference Advisory Committee on the Federal Rules of Evidence. Editorial Board, MOORE’S FEDERAL PRACTICE (3d ed.). Author, MODERN VISUAL EVIDENCE (Supp. 2008); SANCTIONS: THE FEDERAL LAW OF LITIGATION ABUSE (4th ed. 2008); CIVIL RICO: A DEFINITIVE GUIDE (2d ed. 2000). The author wishes to express his gratitude to Professor Patrick L. Jarvis of the University of St. Thomas for reviewing technical aspects of this discussion and for his invaluable insights. © 2001-08 Gregory P. Joseph
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